by Peter Charles Hoffer, Williamjames Hull Hoffer and N. E. H. Hull. Lawrence: University Press of Kansas, 2007. 494pp. Cloth: $34.95. ISBN: 9780700615384.
Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky. Email: pol140 [at] uky.edu.
There has not been a wall to wall history of constitutional law published in a long time. Peter Charles Hoffer, Williamjames Hull Hoffer and N.E.H. Hull, two history professors and a law professor at Georgia, Seton Hall and Rutgers respectively, remedy this in THE ESSENTIAL HISTORY, a long but quite readable book. Their attention is pretty evenly distributed from 1790 to Chief Justice William Rehnquist’s death in 2005. This book should attract intelligent lay readers who are interested in how the Court has shaped constitutional law and serve as a refresher for those moderately knowledgeable about what the Court has done, but could use a brush up on, say, HYLTON v. U.S. (1796), SWIFT v. TYSON (1842), or other decisions more important to the past than to the present. However, there are no footnotes so the book is not a good reference for scholars. I found this a plus most of the time, but the authors give a few nice but not commonly known quotations from justices where I was curious to know the source. There is a long, annotated bibliography. THE ESSENTIAL HISTORY will presumably be used as a text for constitutional history courses, although I am too far afield to predict its popularity. Because it is a history, it is not good text for judicial-type courses in political science. But it may well be placed on an Other Readings of Interest list on these courses’ syllabi.
THE ESSENTIAL HISTORY focuses almost exclusively on the High Court’s constitutional law opinions but gives considerable attention to concurrences and dissents. In this sense, it is not comprehensive coverage of the Court’s jurisprudence as most of that body’s earlier cases were suits at common law and many more recent ones involve issues of statutory interpretation or administrative regulation. (The authors do discuss interpretations of civil rights laws.) Of course, constitutional law is most likely to interest readers. In covering constitutional interpretation, the authors opt for breadth instead of depth, especially in the period after World War II. So many cases are included that, with a few exceptions, important cases get little more analysis than do more obscure ones.
The authors present a nice discussion of each new justice’s career and ideology at the beginning of every chapter. It runs from a single to four or five paragraphs depending on the member’s influence and length of service – enough to give the reader a sense of who is on the bench while still keeping the spotlight on the Court and not on cliques or clashing personalities. Indeed, the authors say little about how the justices arrive at decisions in terms of either biographical revelations, historical research or political science investigations of justices’ voting behavior. THE [*158] ESSENTIAL HISTORY is about output, not process.
Those who would write a history of our highest court’s decisions face some organizational choices. Should they develop the book around doctrinal development in various areas of the law over a good number of years – e.g., federalism prior to the Civil War or the establishment clause after World War II? Or should they slice the chronology more finely and, if so, how? The authors choose to use the arrivals of new chief justices as dividing lines for their chapters. Those serving before John Marshall are compressed into one chapter, but otherwise each Chief has a chapter to himself. Sometimes this is propitious as when Harlan F. Stone’s succession of Charles Evans Hughes coincided with the Court’s shift from an economic focus to cases about the scope and nationalization of the Bill of Rights’ guarantees. But the tenure of Chiefs is rather arbitrary and at times a change does not mark a shift in Court focus or doctrine at all – e.g., Edward White’s following Melville Fuller, or Fred Vinson coming after Stone. In these circumstances, chapters by Chiefs makes for choppy, truncated reading for those interested in doctrinal development.
As it happens, the authors are less interested in doctrines than they are in cases. While cases are grouped into rough legal areas in each chapter – e.g., old substantive due process or freedom of speech and press – the authors usually focus on the cases themselves and give only secondary attention to doctrinal development and clashes of competing approaches. Of course, many substantive and interpretive doctrines are noted as cases are covered, but they are not emphasized and seldom discussed comprehensively. Occasionally doctrines are ignored altogether – e.g., the justices’ half century see-sawing between the valid secular policy test and the compelling state interest test in free exercise clause cases.
In a sense, the book is mistitled. It might better be called CONSTITUTIONAL LAW: THE ESSENTIAL HISTORY because the focus is on constitutional law, not the Court itself. As noted above, there is little said about the interactions within the Court. While Hoffer, Hoffer and Hull do not treat the Court in isolation (there is some discussion of presidential goals in choosing justices and of political and practical realities facing the Court in certain decisions), there is little discussion of the Court’s broader role in making national policies. They say nothing about Robert Dahl’s famous 1957 argument that the Court is generally too weak to buck serious Congressional initiatives or about other arguments over the Court’s place in governing America. Nor is much attention given to the periodic Court-curbing efforts. EX PARTE McCARDLE (1869), the granddaddy of all such efforts, is not even mentioned. And while the authors seem admiring of Court’s resistance to Congressional Red Scare investigations announced in WATKINS v. U.S. (1957), they ignore the Court’s ignominious surrender two years later (BARENBLATT v. U.S., 1959) in the face of a hostile public outcry and Congressional retaliatory bills.
In the same vein, the authors give little attention to the impact of the Court’s decisions, even the major ones. Reading [*159] THE ESSENTIAL HISTORY, one would hardly know how BAKER v. CARR (1962) forever reshaped state legislatures and their policies, how GIDEON v. WAINWRIGHT (1963) altered criminal prosecutions, or even about the vast increase in abortions following ROE v. WADE (1973). Reapportionment gets three paragraphs. Of course this is a partial consequence of the choice to cover a wide array of major and minor decisions with more or less the same attention.
Unfortunately, THE ESSENTIAL HISTORY is marred by careless factual errors. A few from many: NEW YORK TIMES v. SULLIVAN was handed down in 1964, not 1966; Adlai Stevenson was governor of Illinois, not a senator when he ran for president in 1952; Cardozo, appointed in 1932, is erroneously said to have participated in a 1931 case; 28 states, not four, allowed women to vote in 1919 when the 19th amendment was adopted. While such errors are hardly serious, they occur frequently enough to be bothersome.
Although I am disappointed in the narrow focus of their history, I found Hoffer, Hoffer and Hull an enjoyable read. Their discussion is lively, they can offer wry observations, and their analysis of an opinion and its implications is occasionally at odds with the conventional wisdom. It is an attractive book for those who want a comprehensive overview of the cases that shaped our constitutional development and the Court that produced them.
Dahl, Robert. 1957. “Decision Making in a Democracy: The Supreme Court as a National Policy-Maker.” 6 JOURNAL OF PUBLIC LAW 279-295.
BAKER v. CARR, 369 U.S. 186 (1962).
BARENBLATT v. U.S, 360 U.S. 109 (1959).
GIDEON v. WAINWRIGHT, 372 U.S. 335 (1963).
HYLTON v. U.S., 3 Dal. 171 (1796).
EX PARTE McCARDLE, 74 U.S. 506 (1869).
NEW YORK TIMES v. SULLIVAN, 376 U.S. 254 (1964).
ROE v. WADE, 410 U.S. 113 (1973).
SWIFT v. TYSON, 16 Pet. 1 (1842).
WATKINS v. U.S., 354 U.S. 178 (1957).
© Copyright 2008 by the author, Bradley C. Canon.